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Showing 37 posts from 2020.

OSHA Updates its Employer Guidance on COVID-19-Related Fatality Reporting

On September 30, 2020, the Occupational Safety and Health Administration (OSHA) updated its answers to frequently asked questions regarding an employer's obligation to report a COVID-19-related fatality if it occurs within 30 days of the work-related incident. Notably, according to OSHA, an "incident" includes exposure to COVID-19 in the workplace. In order for a fatality to be reportable it must occur within 30 days of the exposure at work, and an employer must report the fatality to OSHA within eight hours. The time clock for the reporting obligation commences within eight hours of the employer knowing that the employee has died and that the cause of death was work-related. More ›

NLRB Weighs in on the Issue of Employer Neutrality Agreements and Section 7 Rights

The National Labor Relations Board (Board) issued a Guidance Memorandum (Guidance) on September 4, 2020, addressing the analysis of employer assistance in union organizing efforts. The Guidance has been provided as a response to requests from regional directors on a series of issues relating to the "amount of lawful support an employer can provide to a union that is attempting to organize its employees." More ›

DOL Proposes New Regulations for Determining Independent Contractor Status under FLSA

Last week, the Department of Labor (DOL) proposed new regulations designed to make it easier for companies to determine whether workers can be classified as independent contractors. The DOL proposed an "economic reality" test to determine whether a worker is an employee or independent contractor under the Fair Labor Standards Act (FLSA). More ›

Political and Social Activism Surges in the Workplace: Five Issues for Employers to Consider

Six months into a global pandemic, employers across the United States continue to confront a series of new economic realities. One particular phenomenon employers are having to deal with is a surge of political and social activism in the workplace. Individuals across the country are voicing opinions in what can only be described as a highly polarized political environment. Many employees are expressing their viewpoints both on social media and in the workplace, and it is unreasonable to expect these conversations will not happen during working hours. More ›

DOL Clarifies Scope of Fluctuating Workweek Overtime Pay Calculation

By definition, the hallmark of the fluctuating workweek (FWW) is that the hours fluctuate. Now, following another opinion letter from the U.S. Department of Labor (DOL) on the topic, employers know that this does not mean fluctuating below 40 hours per week.

The DOL was asked to weigh-in on whether an employee's time had to dip below 40 hours in order to qualify for the FWW method of calculating overtime pay. In answering the inquiry, the DOL asserted that there is nothing in the language of the regulation that requires weekly hours to vary both above and below the 40-hour threshold. More ›

DOL Temporary Rule Clarifies Paid Leave Under Families First Coronavirus Response Act

The U.S. Department of Labor issued a Temporary Rule on September 11, 2020, which revises regulations concerning paid sick leave and expanded family medical leave under the Families First Coronavirus Response Act (FFCRA). The rule, which goes into effect on September 16, 2020, was issued in response to the U.S. District Court for the Southern District of New York's decision in State of New York v. Department of Labor on August 3, 2020, which struck down portions of the FFCRA regulations. More ›

Title VII Enforcement Powers Against Employers Clarified by EEOC Opinion Letter

On Thursday, September 3, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued an Opinion Letter shedding light on the agency's own ability to sue employers under Section 707(a) of Title VII of the Civil Rights Act. The letter clarifies two notable areas for employers. First, the EEOC does not have broad authority to file a civil lawsuit against an employer under Title VII without a finding of discrimination or retaliation. Second, the EEOC must follow procedural guidelines—investigate a charge of discrimination, find reasonable cause, attempt to remedy such practice by conciliation—before a civil lawsuit may be filed. More ›

Escape Clause in Mandatory Arbitration Agreement Carries the Day for Employer in NLRB's Unfair Labor Practice Analysis

Historically, there has been a "push and pull" between the National Labor Relations Board (Board) and employers over mandatory arbitration agreements and class action waivers. Although most of the disputes have been resolved by recent SCOTUS jurisprudence, the Board remains concerned with restrictions in arbitration agreements that limit the ability of employees to file unfair labor practice charges before the Board if employees believe their Section 7 rights have been violated. More ›

Medical Staff Member Deemed Independent Contractor, Not Eligible for Title VII Protection

When assessing potential exposure for their employer-clients under federal labor and employment statutes, employment and health care attorneys often must start with the basics. That determination of employment status becomes even more important in medical facilities, such as hospitals, which have multiple and complex levels of workers with varying levels of skills and responsibilities. This is especially true with independent medical staff members who may have other contractual relationships with hospitals—such as recruitment agreements or administrative services contracts—which can complicate these questions.

The Ninth Circuit recently confronted such a situation when deciding whether an independent member of the medical staff, who had a separate recruitment agreement as well as an on-call services agreement, was an employee or independent contractor. This decision is important for the litigants, because independent contractors ordinarily are not covered by Title VII. More ›

EEOC Issues Guidance on Opioid Use and Accommodation in the Workplace

The U.S. Equal Employment Opportunity Commission (EEOC) issued two technical assistance documents on opioid-related disability issues and reasonable accommodation. The first document (Guidance) employs a question and answer format and focuses primarily on typical questions employees may ask, although employers can also use it as a useful guide when dealing with the illegal use of opioids, the lawful use of prescribed opioids, employees who have a history of opioid use or abuse, and the accommodation responsibilities in each instance. The second document offers guidance to healthcare providers tasked with providing documentation for opioid-using patients seeking accommodations. More ›

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